). =========================================================== Sumitra Devi and Others v. Smt. Yasoda Devi & Others
Case Details
Patna High Court FA No.83 o f 1983 dt.26-02-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.83 of 1983 (Against the judgment and decree dated 06.12.1982 passed by the Subordinate Judge, Samastipur in Title Suit No.99 of 1979). =========================================================== Sumitra Devi and Others .... .... Defendants-Appellants Versus Smt. Yasoda Devi & Others .... .... Plaintiffs- Respondents =========================================================== Appearance : For the Appellant/s : Mr. S.K.Mazumdar, Sr. Advocate Mr. Sheo Dayal Singh Mr. Madan Pd.Singh Mr. Ravindra Kumar Sinha Mr. Devendra Kumar Singh Mr. Sunil Kumar Tiwary, Advocates with him. For the Respondent/s : Mr. Ashutosh Jha Mr. Narendra Pandey Mr. Vijay Kant Mishra, Advocates with him. =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV JUDGMENT Date: 26-02-2013 Mungeshwar Sahoo, J. 1. This First Appeal has been filed by the original defendant-appellant, Bisheshwar Singh against the judgment and decree dated 06.12.1982 passed by the learned Subordinate Judge, Samastipur in Title Suit No.99 of 1979 whereby the learned trial court decreed the plaintiff-respondent’s suit for specific performance of contract. During the pendency of the appeal, the sole appellant died and the legal representatives have been substituted. 2.
Legal Reasoning
The plaintiff-respondent no.1 filed the aforesaid Title Suit No.99 of 1979 for specific performance of contract with Patna High Court FA No.83 o f 1983 dt.26-02-2013 2 respect to Schedule I land and also for redemption of mortgage bond dated 02.12.1974 and 08.11.1974 executed by defendant no.1 in favour of the defendant nos.3 and 4. 3. The plaintiff-respondent no.1 claimed the aforesaid relief alleging that the defendant no.1, Mahendra Jha entered into an agreement to sell the suit land measuring 8 katthas 12 dhurs with the plaintiff because he fells in need of money to repay the loan amount of Land Mortgage Bank and also for performing second marriage of his daughter. The husband of the plaintiff negotiated and the consideration was settled for Rs.11,000. It was agreed that the plaintiff would pay Rs.6000 as earnest money and out of the remaining consideration, a sum of Rs.3,000 was agreed to be kept with the plaintiff for payment to the mortgagee and Rs.2,000 was to be paid at the time of execution and registration of the sale deed i.e. by 25th of September, 1979. According to the terms, the defendant no.1 was required to obtain permission from Consolidation Authority. Accordingly, an agreement was executed on 01.06.1979 on payment of earnest money of Rs.6,000. The defendant no.1 also filed application before the Consolidation Authority but he got it rejected and become dishonest. He is avoiding to execute the sale deed and receive the balance consideration of Rs.2,000. The plaintiff was always ready and willing and is still ready and willing to perform her Patna High Court FA No.83 o f 1983 dt.26-02-2013 3 part of the contract. Advocate notice was sent through registered post on 12.09.1979 and then the plaintiff came to know that the defendant no.1 had sold 3 katthas 10 dhurs out of the suit land to the defendants 2nd party(the original appellant). The said sale deed was executed without obtaining permission from the Consolidation Authority. The defendants 2nd party-appellant had the knowledge of the agreement between the plaintiff and the defendant no.1 but in spite of the said knowledge, he got the sale deed executed by defendant no.1 and even during the pendency of the suit, he again got executed 2 sale deeds on 11.10.1979 and 20.11.1980 with respect to the suit land. All these sale deeds are without consideration. 4. The defendant no.2, the original appellant only filed contesting written statement. Besides taking various legal and
Legal Reasoning
ornamental pleas, mainly it is contended that the alleged Mahadanama dated 01.06.1979 is antedated, collusive and without consideration. The payment of earnest money of Rs.6,000 is denied. The defendant- appellant had purchased 3 katthas 10 dhurs for Rs.6,000. Out of the said amount, Rs.500 had already been paid earlier. Since he was in need of money, he requested the defendant to purchase the land even without permission. Rs.4,800 was paid on the same day and Rs.700 was agreed to be paid to the defendant no.3, the mortgagee. The defendant no.1 subsequently applied for permission in Permission Patna High Court FA No.83 o f 1983 dt.26-02-2013 4 Case No.487 of 1979-80 and sold 10 dhurs of land on 11.10.1979. Later on, the defendant no.1 sold the remaining 8 katthas 2 dhurs for consideration of Rs.14,000 on 20.11.1980. The defendant no.2, appellant had no knowledge about the prior agreement and in fact, nobody was ready to purchase the property so there was no question of any agreement arises. 5. On the basis of the aforesaid pleadings of the parties, the following issues were framed: Is the suit as framed maintainable? I. II. Has the plaintiff got any cause of action or right to sue? III. Is the suit barred by limitation and principles of estoppel, waiver and acquiescence? Is the suit bad for misjoinder of the defendant 3rd party? Is the Mohadanama dated 1.6.79 genuine, valid, for consideration and binding on the defendant first party? Is the plaintiff entitled to a decree for specific performance IV. V. VI. of contract as claimed? VII. To what other relief or reliefs, if any, is the plaintiff entitled to? 6. After trial, the Lower Court decreed the plaintiff’s suit finding that Mahadanama was executed on 01.06.1979 with stipulation to execute the sale deed by 25th September, 1979 and that the defendant no.2, appellant had the knowledge of the agreement between the plaintiff and the defendant no.1. The defendant no.2 failed to prove that he is a bonafide purchaser without notice. The Patna High Court FA No.83 o f 1983 dt.26-02-2013 5 plaintiff was always ready and willing to perform her part of the contract. The Mahadanama is valid, genuine, for consideration and binding. 7. The learned senior counsel, Mr. Mazumdar appearing on behalf of the appellants submitted that the learned trial court has misread the evidences of the witnesses. The scribe who was examined as P.W.12 has admitted that he never worked as deed writer. He has also admitted that prior to his deposition, the Advocate told him the matter to be deposed by him and he is a school teacher. The husband of the plaintiff is also a school teacher. Therefore, his evidence was not reliable but the learned trial court did not consider this aspect of the matter. In fact, no consideration was paid by the plaintiff to the defendant no.1 and no reliable evidence has been produced by the plaintiff in support of the fact that the appellant had the knowledge about so called agreement between the plaintiff and the defendant no.1. Moreover, the agreement itself is forged and no consideration was passed. D.W.1 who is the appellant has specifically stated that he was not present when any negotiation took place. On this ground, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside as the defendant- appellant is a bonafide purchaser for value without the prior knowledge of the so called agreement. Patna High Court FA No.83 o f 1983 dt.26-02-2013 6 8. On the other hand, the learned counsel for the plaintiffs-respondents submitted that the trial court considering the evidences and materials available on record recorded the finding that the defendant-appellant had the knowledge of the agreement as he was present there being the relation of the plaintiff. He was called because he was elderly person. Moreover, 2 sale deeds have been obtained by the defendant-appellant during the pendency of the present suit therefore, it cannot be said that he had no knowledge. Moreover, the sale deed executed in favour of the appellant will be hit by the principles of lis pendence. The learned counsel further submitted that as far back as in the year 1983, the plaintiff has already obtained delivery of possession of the suit lands and still then the plaintiff is in possession of the property. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost. 9. In view of the above rival contentions of the parties, the only point arises for consideration in this appeal is as to “whether the defendant no.2, appellant is a bonafide purchaser for value without notice of the agreement between the plaintiff and the defendant no.1” and “whether the impugned judgment and decrees are sustainable in the eye of law?” 10. It may be mentioned here that only the appellant had contested the suit. According to the defendant no.2, appellant, the Patna High Court FA No.83 o f 1983 dt.26-02-2013 7 Mahadanama is forged and no consideration passed and, therefore, no question of his presence arises. So far this case of the defendant regarding forged and non passing of consideration is concerned, except the bald statement and the pleading, nothing has been brought on record in support of this fact. 11. P.W.1, Rajeshwar Prasad has stated that the defendant no.1 had negotiated to sell the suit land 8 katthas 12 dhurs for Rs.11,000 in presence of this witness. Mahendra Jha had to repay the loan and also to meet the expenses of Duragaman of his daughter. Rs.6,000 was paid as earnest money and remaining Rs.2,000 was to be paid at the time of execution and registration of the sale deed. Rs.3,000 was kept with the plaintiff for repayment to the mortgagee. P.W.2, Bindeshwar Prasad has also stated the same thing. He is one of the witnesses. At paragraph 5, he has clearly stated that Bisheshwar Singh, the original defendant no.2, appellant was present at the time of negotiation. It may be mentioned here that so far this statement at paragraph 5, no cross-examination has been made by the appellant. Even no suggestion has been given to him. P.W.3 and 4 are formal witnesses. P.W.5 has stated about the negotiation of purchase of the land between plaintiff and defendant no.1 which he has heard. P.W.6 has also fully supported the case pleaded by the plaintiff. According to him, he was present at the time of negotiation. Patna High Court FA No.83 o f 1983 dt.26-02-2013 8 He is a witness to the agreement, Exhibit 6. In the cross-examination, at paragraph 4, he has clearly stated that at the time of negotiation, Bindeshwari Singh and Ramniranjan Singh were also present. It may be mentioned here that this statement has been taken out by the appellant in the cross-examination but no suggestion has been given to him that he is deposing falsely. Therefore, impliedly, the appellant is admitting this fact that he was present there at the time of negotiation. P.W.7 also supported about the negotiation and execution of the agreement as pleaded by the plaintiff. His evidence is in the same line. From perusal of the cross-examination of the above witnesses, it appears that they are consistent with the case of the plaintiff regarding negotiation and agreement between the parties. P.W.8 and P.W.9 both have stated that in their presence, Bisheshwar Singh, the appellant was asking subsequently to Mahendra Jha to cancel the sale deed and execute registered sale deed in his favour. 12. P.W.12 is the scribe. He has fully supported that he was called by Mahendra Jha and husband of the plaintiff. He scribed the agreement, Exhibit 6. In his presence, Rs.6,000 was paid as earnest money. 13. So far the documentary evidences are concerned, all those documents are not related with the point as to whether the appellant had the knowledge of the agreement or not. Therefore, it is Patna High Court FA No.83 o f 1983 dt.26-02-2013 9 not necessary to examine the documents. The documents have been produced in support of the case regarding possession of the parties. 14. D.W.1 is the defendant no.2, appellant. He has stated that nobody was ready to purchase the land of defendant no.1. The Mahadanama, Exhibit 6 is without consideration and he was knowing the agreement between the plaintiff and defendant no.1. All other witnesses examined on behalf of the defendants are not on this point. They have deposed regarding the purchase of the defendant- appellant from Mahendra Jha and about the consideration money and obtaining permission. It may be mentioned here that no doubt, D.W.1 i.e. defendant no.2, appellant has denied that he had knowledge about the agreement between the parties, his pleading and evidence is in negative form. Once he denies his knowledge, the onus is on the plaintiff to prove that he had the knowledge about the agreement between the plaintiff and defendant no.1. Unless this onus is discharged, the plaintiff is not entitled to get the decree for specific performance because in that case, the defendant no.2, appellant will be considered to be a bonafide purchaser without notice. It is reiterated here that 2 sale deeds have been obtained by the defendant no.2, appellant during the pendency of this suit. Therefore, so far these 2 sale deeds are concerned, this principle that he is bonafide purchaser without notice of the agreement cannot be inferred. In spite Patna High Court FA No.83 o f 1983 dt.26-02-2013 10 of the pendency of the suit, he got executed 2 sale deeds. Therefore, so far this part is concerned, it is for the defendant-appellant to prove that he had no knowledge. Here, no such evidence has been adduced. We have discussed above the evidences adduced on behalf of the plaintiff. The witnesses had stated specifically that this defendant no.2, appellant was present at the time of negotiation and execution of the agreement. One witness has stated in cross-examination. The defendant-appellant did not cross-examine the witnesses on this point. In other words, he admitted the fact that the witnesses are telling the truth because he did not controvert their statements either by giving any suggestion or by cross-examining them to falsify their testimony regarding his presence. Therefore, in law, it will be presumed that he has admitted the statement of the said witnesses and accepted that he was present there. 15. Now, therefore, in view of my above discussion, I have no option but to record a finding that this defendant no.2, appellant had the knowledge about the agreement dated 01.06.1979 between the plaintiff and the defendant no.1. So far the passing of consideration is concerned, the appellant being the third party to the transaction cannot challenge the same. He could have examined his vendor in support of his case but there is nothing on record. Likewise, so far genuineness is concerned also, there is no evidence contrary to Patna High Court FA No.83 o f 1983 dt.26-02-2013 11 the evidences adduced by the plaintiff. I, therefore, find that the agreement was valid and genuine and for consideration and the appellant had the knowledge. Therefore, the appellant is not a bonafide purchaser for value. The finding of the learned trial court on this point is, therefore, confirmed. 16. Since no other point is raised by the parties, all other questions are not required to be gone into here i.e. regarding readiness and willingness which has been recorded by the trial court in favour of the plaintiff. So far this finding is concerned, no argument has been advanced by the appellant. The only point raised is that the agreement is without consideration, forged and that the appellant is bonafide purchaser for value. 17. In view of my above discussion and finding, the impugned judgment and decrees cannot be interfered with. 18. In the result, this First Appeal is dismissed. In the facts and circumstances of the case, no order as to cost. Saurabh/- (Mungeshwar Sahoo, J)